Human Rights Tribunal Upholds France’s Policies on Ending Life Support for Permanently Unaware Patients

By Norman L. Cantor

France recently confronted its version of America’s 2005 Schiavo case (in which the Florida Supreme Court upheld a spouse’s determination to end life support to a permanently unconscious patient despite the patient’s parents’ objections). In 2014, France’s Conseil d’Etat ruled that artificial nutrition and hydration (ANH) could be withdrawn from a permanently vegetative patient based on oral statements that the patient had made, while competent, indicating unwillingness to be medically sustained in such a condition. The patient’s objecting parents then sought a declaration from the European Court of Human Rights (ECHR) that such termination of life support would violate the European Convention on Human Rights. On June 5, 2015, the ECHR rejected the objecting parents’ contention, finding that France’s approach met human rights standards both in the process and the criteria followed by medical personnel in deciding to end life support.   Lambert v. France, #46043/14 (ECHR 2015).

Vincent Lambert, then 32 years old, was grievously injured in a 2008 traffic accident. He suffered massive brain trauma and was hospitalized for the next 7 years at Reims University Hospital. His precise medical status was initially uncertain. In July 2011, a medical evaluation found him to be “minimally conscious plus.” Over the next year and a half, he underwent 87 speech therapy sessions which failed to establish any code of communication between Mr. Lambert and his surroundings. In early 2013, the attending physician, Dr. Kariger, initiated a process to review Mr. Lambert’s condition and to determine whether the ANH sustaining Mr. Lambert should be withdrawn.

The process that followed was extensive. During 2013, Dr. Kariger consulted with 6 physicians concerning the patient’s mental status and held 2 family meetings at which Mr. Lambert’s wife, Rachel, his parents, and 8 siblings were present. In January 2014, Dr. Kariger announced his determination to end artificial nutrition and reduce hydration. Dr. Kariger’s written report explained that Mr. Lambert had become permanently unaware of his environment and, according to accounts of Mr. Lambert’s prior oral expressions, he would not wish to be medically sustained in such a debilitated condition. Five of the six medical consultants agreed, as did the patient’s wife and 6 of his 8 siblings.

When Mr. Lambert’s disgruntled parents turned to the French courts, the Conseil d’Etat first sought an expert evaluation of the patient’s mental status. An expert panel concluded in May 2014 that Mr. Lambert’s brain damage was indeed severe and irreversible; he had reached a permanently vegetative status with no awareness of his environment.  In the wake of that medical assessment, the Conseil d’Etat considered the applicable regulatory framework under French legislation. The French high court ruled that where a grievously stricken patient has neither an advance directive nor a formally designated health agent, an attending physician can terminate life support in limited circumstances. The French statutory criterion is “unreasonable obstinacy.” That term could apply in instances of medical futility, or disproportionate intervention (burdens exceeding benefits), or, as relevant here, intervention “having no other effect than to sustain life artificially.” That last phrase was particularly intended to apply to brain damage causing permanent unawareness, inability to relate to others.

Dr. Kariger’s determination to end life support to the permanently unaware Mr. Lambert was also grounded on a belief that Mr. Lambert ‘s previously expressed wishes dictated that result. Rachel and Vincent Lambert had both been professional nurses. She reported that her husband had commented on several occasions that he would not want to be preserved artificially in the highly debilitated state in which he was now mired. This assessment of his wishes was confirmed by one of his brothers and was consistent with Mr. Lambert’s character and opinions. A French lower court had rejected the physician’s reliance on the patient’s informal expressions to his wife. On appeal, the Conseil d’Etat found that the decision maker was entitled to attach “particular importance” to the patient’s wishes even as gleaned from informal expressions. Accordingly, the French tribunal found that Dr. Kariger’s decision to end life support was consistent with French law. The patient had been found to be permanently unaware and the patient’s apparent wish to be allowed to die in such circumstances should prevail.

Mr. Lambert’s disgruntled parents then turned to the European Court of Human Rights in Strasbourg contending that France’s acquiescence in Dr. Kariger’s proposed course violated the European Convention on Human Rights. The central claim was that France’s framework for ending life support breached Article 2’s guarantee of a patient’s right to life. The parents contended that the procedures followed in resolving Mr. Lambert’s medical fate and the criteria used were inadequate to meet human rights standards for protecting life.

By a 12 to 5 margin, the judges of the ECHR rejected the parents’ claims. The 12-judge majority found that the French regulatory framework fully satisfied governmental obligations to protect human life. While Article 2 did require steps to preclude inappropriate termination of life-sustaining medical intervention, the investigatory process used to determine Mr. Lambert’s condition and to shape his medical fate was full and fair. Dr. Kariger had undertaken consultations both with medical sources and with interested family members and caretakers. Moreover, the statutory decision-making criteria were acceptable.  According to the majority, the notion of “unreasonable obstinacy” was appropriate as applied to persons permanently unaware and unable to engage in human relationships. And it was appropriate for decision makers to give “paramount importance” to the patient’s wishes “however those wishes are expressed.” (Para. 147).

The 5-judge dissent would have found that Article 2 precluded removal of Mr. Lambert’s life support. They viewed a determination to deny food and water to a non-suffering, medically sustainable patient as a frightening specter in the absence of a clearly expressed wish by the patient to forgo such life support in the circumstances at hand. The dissent denounced reliance on “casual conversations” uttered years earlier in assessing the patient’s wishes. They claimed that a terminal decision should be grounded only on “absolute certainty” about the patient’s wishes. Otherwise, they said, extension of life for a non-suffering patient should be mandatory.

The Lambert majority position is consistent with humane handling of grievously stricken medical patients. Permanent unconsciousness – with its total incapacity to relate to a patient’s environment – is an intrinsically undignified status. Most people contemplating their own fate prefer not to be maintained in such an extremely debilitated condition and prefer to spare their loved ones a protracted and burdensome death watch over an irreversibly insensate, unresponsive individual. The conversations and preference attributed to Mr. Lambert were fully believable and consistent with common experience. The dissent’s insistence on more formal and more explicit expressions was neither realistic nor humane.

The arguable defect of Lambert is that neither the French court nor the ECHR went far enough in outlining the appropriate approach toward permanently unconscious patients. Once a patient is carefully assessed as permanently unaware, the presumption for decision makers should be that life support should be terminated unless there is evidence that the patient had previously expressed a contrary wish. Such a default decision-making position would be consistent both with the preferences of a strong majority of patients and with humane medical handling. Further, hospitals should adopt institutional policies clarifying that artificial life support for permanently unaware patients is “medically inappropriate.” Such policies would include careful assessment of the patient’s condition and institutional cooperation in transferring the permanently unconscious patient to another institution if the patient’s loved ones could find a willing recipient.  Yet in the absence of previously expressed wishes to be sustained in such a status, artificial maintenance of a permanently unconscious patient is indeed medically inappropriate. See N.L. Cantor, “No Ethical or Legal Imperative to Provide Life Support to a Permanently Unaware Patient,” 10:3 Am. J. of Bioethics 58-59 (March 2010).

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